Court: Watch how suit is served

Ruling: Agreements make clear how to get copies to foreign defendants

A recent Arizona court ruling highlights the importance of serving foreign entities with copies of a lawsuit when seeking redress.

In a unanimous decision, the Arizona Supreme Court recently ruled that an Indian tribe did not follow international agreements in serving Mexican entities with copies of a lawsuit.

The justices acknowledged that the issue of international service is complicated, at least in part by different translations of the agreement. But they said the plain reading of the compact, and the specific exceptions that Mexico carved out for itself, provide only a single method: service through a central authority of the Mexican government's choosing.

Justice Scott Bales, writing for the court, said he and his colleagues chose to weigh in on the issue because it is important and of statewide concern.

The case involved the Lac Vieux Desert Band of Lake Superior Chippewa Indians.

A 2004 change in Mexican law allowed for gaming casinos. So the tribe, through one of its arms, invested $6.5 million with Mexican entities for a casino in Guadalupe, Mexico.

It filed suit amid a dispute over the cash. The case was handled in Arizona courts pursuant to an agreement in the contract to have legal disputes handled in this state.

The tribe asked Maricopa County Superior Court Judge Joseph Kreamer to approve alternate forms of service of the lawsuit - necessary to pursue a case - on the defendants. The judge agreed to a combination of efforts including certified mail to their addresses of record, e-mail, Federal Express delivery to an address in Mexico where the parties had last met, and regular mail to one other at his last address.

While the tribe did not get return receipts, the judge concluded they had complied with the requirements of Arizona law. And the judge rejected arguments by attorneys for the defendants that the Hague Convention, which governs international lawsuits, does not permit these methods of service.

Bales said Arizona court rules allow papers to be served on those in foreign countries in a manner reasonably designed to give notice. He said that can include means authorized by the Hague Convention or by other means not prohibited by international agreement.

While the Hague Convention does mandate service through a central authority, it does permit alternate means. That includes not only through consular officials but also by post office through judicial officers, officials or other "competent persons" of the receiving country.

The problem, said Bales, is the convention allows countries to opt out of those alternate services. And Mexico specifically refused to accede to the two mentioned, making its Ministry of Foreign Affairs its central authority for service.

Bales said the Mexican government did provide an English language translation of its declarations regarding the Hague Convention. But he said that had a mistranslation.

That English version, Bales said, is not binding on the Mexican government. "Mexico's government signed, and its Senate ratified, the instrument of accession in Spanish," Bales wrote. He said that makes the Spanish version - the one that disallows alternate service on Mexican nationals and corporations - the official one

"When the Convention applies, alternative service in Mexico through postal channels and e-mail is prohibited," the judge said.

The Supreme Court ruling does not necessarily end the lawsuit. Bales said the tribe has some alternate theories on why its efforts to serve the Mexican individuals and entities are valid. The high court directed that these be reviewed by the trial court judge.

The case is Cardona v. Kreamer and the Lac View Desert Band of Lake Superior Chippewa Indians CV 10-0017 PR.